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WILMA REFOSCO v. COMMONWEALTH PENNSYLVANIA (02/24/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 24, 1981.

WILMA REFOSCO, WIDOW OF LAWRENCE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, CONSOLIDATION COAL COMPANY AND COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Wilma Refosco, widow of Lawrence v. Consolidated Coal Company and Commonwealth of Pennsylvania, No. A-77712.

COUNSEL

Benjamin L. Costello, with him, Kenneth J. Yablonski, for petitioner.

Daniel L. Fassio, Rose, Schmidt, Dixon, Hasley, Whyte & Hardesty, for respondent, Consolidation Coal Company.

Gregory D. Geiss, Assistant Attorney General, for respondent, Commonwealth of Pennsylvania.

Judges Mencer, Rogers and Palladino, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 57 Pa. Commw. Page 75]

This is the second of three cases consolidated on appeal, which concern the intendment of Section 301(c)(2) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 411(2). Petitioner, the widow of a coal miner, appeals from an order of the Workmen's Compensation Appeal Board (Board), which denied her entitlement to death benefits under Section 301(c)(2) of the Act. We affirm the Board's order.

[ 57 Pa. Commw. Page 76]

Section 301(c)(2) of the Act provides that whenever occupational disease is the basis for compensation, . . . it shall apply only to disability or death resulting from such disease. . . ." (Emphasis added.)

In this case testimony from two physicians, one of whom prepared the autopsy report, showed that petitioner's husband died as the result of coronary arteriosclerosis and that petitioner's husband also suffered from myocardial infarctions, corpulmonale, anthracosilicosis (an occupational disease), emphysema, and bronchiectasis. Initially, the Referee found that anthracosilicosis "contributed in a substantial or significant manner" to the death. On remand the Referee found that "/i light of . . . Consolidation Coal Co. v. Workmen's Compensation Appeal Board, 37 Pa. Commonwealth Ct. 412, 391 A.2d 14 (1978), . . . claimant/widow/failed to produce legally sufficient and competent evidence which establishes or pinpoints that the decedent's death resulted from the occupational diseases claimed." The Referee failed to find that anthracosilicosis, in and of itself, could have resulted in the death of petitioner's husband.

Based upon the findings of the Referee and upon this Court's opinion in the first of the three cases consolidated on appeal, Elliott v. Workmen's Compensation Appeal Board, 57 Pa. Commonwealth Ct. 70, 425 A.2d 885 (1981), we affirm the Board's order denying benefits to petitioner, and we will enter the following

Order

And Now, February 24, 1981, the order of the Workmen's Compensation Appeal Board, Docket No. A-77712, dated March 6, 1980, is affirmed.

Disposition

Affirmed.

19810224

© 1998 VersusLaw Inc.



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